States Can Protect Unhoused People When the U.S. Supreme Court Won’t

The U.S. Supreme Court held recently that the Eighth Amendment’s ban on cruel and unusual punishment does not prohibit cities from punishing unhoused people for sleeping in public, even if they have nowhere else to go. The 6–3 decision in Johnson v. City of Grants Pass, has garnered condemnation from homelessness advocates, civil rights organizations, and the public.

Though devastating — especially amid extreme shortages in affordable housing and rising costs of living — the ruling leaves open the door for other legal avenues for combatting the criminalization of homelessness, including state constitutions. 

A recently filed case in Washington underscores this promise. Last month, the American Civil Liberties Union sued the city of Spokane, Washington, alleging that its anti-camping laws violate the state constitution’s ban on cruel punishment (as opposed to the Eighth Amendment’s ban). The lawsuit argues that the anti-camping laws functionally criminalize homelessness, and that because homelessness is not a voluntary or willful act criminalization is unconstitutional.

The case is the first state constitutional challenge to laws targeting unhoused people since the Grants Pass decision. It presents a powerful opportunity for Washington courts to show that the U.S. Supreme Court doesn’t have the last word on the rights of unhoused people.

The criminalization of homelessness

For years, people experiencing homelessness have been penalized all over the country simply for trying to survive without housing. Examples include Luke, who lives in Austin, Texas, and has been arrested multiple times just for existing in public spaces. Alexis, pregnant and unhoused, was sleeping in a tent in San Diego when police arrested her and jailed her for several days. And Eric, of New Rochelle, New York, was arrested for asking a police officer if he could spare a dollar.

These stories are tragically common. Researchers at Harvard University have confirmed that the number of people experiencing homelessness reached a record high in 2023. And the number one cause of homelessness is a lack of affordable housing, a problem that is getting worse. The United States has a national shortage of more than 7 million affordable and available rental homes. Based on national minimum wage and the average rent in the United States, a minimum wage worker must work 95 hours a week — 2.4 full time jobs — to afford a one-bedroom apartment.

Many cities and states have responded to this crisis with punitive measures. Laws targeting unhoused people have increased drastically since 2006 — prohibitions on sitting or lying down in public have increased by 52 percent, for example, and bans on living in vehicles have increased by 143 percent. Laws like these give local law enforcement tools to target an already disproportionately persecuted population. From 2017 to 2020, unhoused people made up just 2 percent of the population of both Portland, Oregon, and Sacramento, California, but were 50 percent and 42 percent of those arrested, respectively.

Often accompanied by unpayable fines, this criminalization of life-sustaining behavior is cruel and counterproductive, as it further entrenches already endemic poverty. Citations for loitering, for example, carry fines that people experiencing homelessness cannot realistically pay or challenge in court, as they often lack an address to receive court notices and transportation to courthouses. Failure to appear in court may lead to arrest, and future citations may bring jail time, which in turn leads to missed work — and may stymie unhoused people’s future efforts to find jobs or housing.

The promise of state constitutions

The U.S. Supreme Court may have ruled that enforcement of anti-camping laws does not constitute cruel and unusual punishment under the federal Constitution, but that does not mean that such punishment is lawful under state constitutions.

Every state has its own constitution, and every state supreme court has the final say on what that constitution means. So long as the state constitution does not violate federal law, no federal court, not even the U.S. Supreme Court, can overturn a state supreme court’s independent pronouncement based on the state constitution. Moreover, state courts are free to go beyond the U.S. Supreme Court’s interpretation of federal protections when evaluating their own constitutions — and many do.

At a time when the U.S. Supreme Court has shown itself willing to overturn its own precedent and disregard individual rights, state constitutions can be a meaningful counter to that trend and a source of civil liberties. This is especially true when it comes to protecting unhoused people. State analogues to the Eighth Amendment, as well as other state constitutional provisions, offer great promise for fighting the criminalization of homelessness in the wake of Grants Pass.

Anti-punishment provisions

Forty-eight states have an express analogue in their state constitutions to the Eighth Amendment’s prohibition on cruel and unusual punishment, though only 14 of them use language identical or nearly identical to the federal Eighth Amendment.

Seven states use the “cruel and unusual” language and have additional requirements not present in the Eighth Amendment. For example, Indiana, Oregon, and West Virginia require that all penalties and punishments be “proportional” to the offense committed. Twenty state constitutions proscribe cruel or unusual punishments, and six prohibit cruel punishment, omitting reference to “unusual” punishment.

Many state courts have already interpreted their Eighth Amendment analogues more expansively than the federal counterpart. For example, the high court of Washington has held that its constitution prohibits the state’s death penalty laws, a marked departure from federal precedent. At least six state supreme courts have declared that their prohibitions against cruel and unusual punishment, or both, bar excessive sentences for juveniles or young adults that would be allowed under the federal Constitution. And several state courts have announced broader constitutional protections for incarcerated people challenging abuse and poor conditions in jails and prisons.

Even in states that have no explicit analogue, courts can interpret other constitutional provisions as offering expanded protections against cruel punishment. In Connecticut, where the state constitution does not contain an express analogue to the Eighth Amendment, the supreme court has held that the state due process clause encompasses a prohibition against cruel and unusual punishments and prohibits the death penalty.

Significantly, state courts have already been receptive to arguments that laws targeting unhoused people are cruel or unusual, or both. In Colorado, a state constitutional challenge to Boulder’s prohibition on living or sleeping outside while using blanket or any cover or protection from the elements other than clothing — dubbed a “blanket ban” — survived a motion to dismiss in February 2023. Although the text of Colorado’s ban on cruel and unusual punishment is identical to the Eighth Amendment, the court noted that Colorado courts regularly depart from federal law when interpreting the state constitution.

And in Washington, a trial court found in July 2023 that Seattle’s administrative rules “designed to stop homeless people from sleeping, sitting, resting, or keeping their belongings on public property” were unconstitutional on their face under the state constitution’s prohibition against “cruel punishment.” The court treated the federal Eighth Amendment as the “constitutional floor,” not the ceiling, for the protection of rights in the state — in line with the Washington Supreme Court’s repeated recognition that the state constitution’s “cruel punishment clause often provides greater protection than the Eighth Amendment.” That case is now on appeal.

The lawsuit filed last month against Spokane, then, gives Washington courts an opportunity to build upon decisions expanding rights against cruel punishment both in and out of the state. We can expect more of these claims to move forward in the wake of Grants Pass — and, hopefully, we will see state supreme courts reject the reasoning of the U.S. Supreme Court’s dangerous and cruel decision.

Other state constitutional claims

The Grants Pass decision focused solely on the cruel and unusual punishment clause of the Eighth Amendment, but litigation in this arena often implicates a host of other rights, including privacy, due process, protection against excessive fines, and freedom from unlawful searches and seizures. While these claims are still viable under the federal Constitution, positive rulings by federal lower courts in these areas risk reversal by the U.S. Supreme Court. By contrast, advocates could challenge the criminalization of homelessness on analogous state constitutional grounds and — in most cases — do so without any possibility of federal court review.

For example, Hawaii’s supreme court issued a final decision earlier this year expanding the due process rights of unhoused people living in the state. The court held that Maui County officials violated the state constitution when they confiscated and destroyed the property of unhoused people without a hearing.

In New Mexico, unhoused plaintiffs brought a class action lawsuit against the city of Albuquerque in 2022, arguing that citing and arresting unhoused people and destroying their belongings violated state constitutional provisions on cruel and unusual punishment, unlawful seizure of property, and due process. The case is ongoing, but plaintiffs won a victory last year when the court ruled that there was a substantial likelihood that they would prevail on the merits of their claims.

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As long as cities and states criminalize homelessness, impacted people and advocates will fight back. One avenue of litigation has been closed by the U.S. Supreme Court, but the movement’s focus on state constitutional protections offers reason to remain hopeful.

Bridget Lavender is a Skadden Fellow with the ACLU’s State Supreme Court Initiative.

Suggested Citation: Bridget Lavender, States Can Protect Unhoused People When the U.S. Supreme Court Won’t, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 17, 2024), https://statecourtreport.org/our-work/analysis-opinion/states-can-protect-unhoused-people-when-us-supreme-court-wont